In its decision in Reha Training v GEMA the CJEU has ruled that the making available of TV programmes in waiting rooms and a training room within a rehabilitation centre constitutes a communication to the public, requiring the proprietor (‘Reha Training’) to pay royalties to GEMA (a company entrusted with collective management of copyright in the musical sector in Germany).

In a reference which came from the national courts of Germany, the CJEU was first asked whether such a situation (where both copyright and rights of performers and/or producers were engaged) should be governed by Article 3(1) of the Copyright Directive 2001/29/EC (which provides authors with the exclusive right to authorise communications to the public of their work) or Article 8(2) of the Rental Directive 2006/115/EC (which provides authors with the right to be compensated if a phonogram is published for commercial purposes), or both. It was held that the provisions of the Copyright Directive had to apply without prejudice to the provisions of the Rental Directive. Reference was made to the requirement for unity and coherence across the European Union and it was held that both Directives were engaged, with “communication to the public” to have the same meaning.

The second question referred concerned the criteria which applied when assessing whether there had been a communication to the public. The CJEU confirmed that the approach to determining a communication to the public is twofold: there must be an ‘act of communication’ of a work; and communication of that work to a ‘public’. The term ‘public’ refers to an indeterminate number of potential recipients and implies a fairly large number of persons. Further, the work must be made available to a ‘new’ public (i.e. a public not taken into account by the authors when the initially authorised their use by the communication to the original public). The CJEU felt it was relevant to know how many persons have access to the works at the same time and how many of them also have access to it in succession. The indispensable role of the user and the profit making nature of a broadcast are also relevant considerations.

In determining whether there had been a communication to the public in the present case reference was made to previous decisions of the court in the context of a café-restaurant, a hotel and a spa establishment where there was found to be a communication to the public, and a broadcast of phonograms in a dental practice where there was not (SCF Case C-135/10). It was held that the present case was “fully comparable” to the café, hotel and spa situations in that Reha Training in that the operator of the rehabilitation centre intentionally broadcasted protected works to its patients by means of television sets installed in several places in that establishment. The broadcasts provided Reha Training with an additional service which impacted its standing and attractiveness giving it a competitive advantage.

The Court stopped short of ruling that the SCF case was no longer valid law and instead decided to distinguish this case on the fact that the dentist practice did not get any commercial advantage from providing the broadcast as it did not matter to dental patients; while a finding of fact, the apparent anomaly is obvious. Arguably, therefore, following this decision it appears that there is an increasing likelihood of businesses being found liable for acts of communication to the public in relation to broadcasts made to their customers.

Link to Judgment

Judgment Date: 31 MAY 2016